He did not say the old pipes were original and I realize I was moving forward from a for-the-sake-of discussion decision that was not explicit in my post: that the found pipes were being accepted as definitive evidence of lot 6's boundary.
With that now stated, how would you handle the right-of-way as constructed from the stones and the overlap defined by the old pipes (extra-terrestrial forces notwithstanding).
back-chain, post: 364826, member: 7900 wrote: May be off topic a little:
In Rich.'s example and question above. I agree that the stones, as original monumentation, control the right-of-way. With that said, his plat seems to indicate an overlap based on the front lot corners found.
For the final map:
Do you do nothing and let the right-of-way "varies". I try not to do this.
Do you set a new monument at the intersection of R/W as constructed from original stones and lot-line as constructed from found monuments, draft a very descriptive note on the map explaining the situation (why the two monuments are there) and file it for the next guy? I have done this with emphasis on VERY descriptive note.
I've seen plats that treat the situation like this: monument found, offline xxå¡xx'xxx" 0.37'. I don't do this but, it sure seems easy.
As I type this, I realize it's somewhat of a style issue.
Thanks (again) to all y'all. This place rawks, indeed.
Location is a question of fact drawn from the preponderance of the evidence. It's not unreasonable to say the stone monuments are superior evidence of the right-of-way if the pipes are not original but if the pipes are original monuments then the right-of-way almost certainly bends at the monuments (subject to a review of New York law which may vary). In the first example the monuments are only 0.2' and 0.3' south of the line between the stone monuments. Frankly, I think it's only Land Surveyors that get all twisted over these small differences. The Courts usually are talking about much bigger disputes, several feet at least.
A comment on the fence on the second exhibit: it does not meet the definition of an encroachment since it appears to be all on one lot. A lot owner does not have to fence in their entire lot so that would tend to decrease it's likelihood of establishing a boundary.
Dave Karoly, post: 364835, member: 94 wrote: subject to a review of New York law which may vary
10-4.
Dave Karoly, post: 364835, member: 94 wrote: I think it's only Land Surveyors that get all twisted over these small differences. The Courts usually are talking about much bigger disputes, several feet at least.
and, 10-4.
My example was completely fabricated and not real for the sake of conversation.
I agree this wouldn't be much of a discussion if the pipes were original (set during subdivision or by the first surveyor to actually lay the protracted lines on the ground)
In my example I meant they were found with but had no history and most likely not original.
I would assume if they seem to be relied upon due to the layout of fences etc then they would control.
I'm still just trying to get a grasp on the accepting monuments thing.
Rich., post: 364842, member: 10450 wrote: My example was completely fabricated and not real for the sake of conversation.
I agree this wouldn't be much of a discussion if the pipes were original (set during subdivision or by the first surveyor to actually lay the protracted lines on the ground)
In my example I meant they were found with but had no history and most likely not original.
I would assume if they seem to be relied upon due to the layout of fences etc then they would control.
I'm still just trying to get a grasp on the accepting monuments thing.
It is a problem with our system of location; Title transfers have to be in writing but boundary agreements can be in parol because 1) they don't transfer property and 2) the Courts have traditionally treated location differently from title. The system seems to be built upon actual notice of the boundary location and property owners are presumed to know where their boundaries are located. So if a monument appears the property owner is presumed to know it is incorrect and they should object within a reasonable period of time. There is also a sense I have that perfection is not expected or required therefore a monument that reasonably fits the Deed (such as in your example) it will control.
In Title cases (that is what was the nature of the estate intended to be transferred, life estate, fee simple, easement, lease or which tract or tracts were intended to be transferred) the Court has the written document which is required and they search for the objective intentions of the party inside the instrument (except that there are numerous exceptions to this rule). On the other hand, in boundary location the Courts look more broadly, is there actual notice of a physical boundary, are there established monuments, does a pattern of occupation fit a monument or monuments although they are technically incorrect? What did the parties do, say, agree to, even in parol? The most important thing to us is our expert testimony is admissible to help do the difficult task of ascertaining the location of the boundaries.
These two sections are speaking to the identification of the land intended to be conveyed (a title question) but not necessarily the exact boundaries:
å¤ 24:35.Interpretation, 1 N.Y. Law & Practice of Real Property å¤ 24:35 (2d ed.):
The purpose of a description in a deed is to identify the land intended to be conveyed, and that part of the description which best identifies the land, in accordance with the intent of the parties, will be deemed the controlling part of the description.
å¤ 24:36.When parol evidence admissible, 1 N.Y. Law & Practice of Real Property å¤ 24:36 (2d ed.):
When the description of property in a deed is so vague, obscure or conflicting as to leave the intent of the parties uncertain, the declarations and acts of the parties may be shown by parol. 25 Similarly, although on the face of a deed there may be no ambiguity in the language employed, nevertheless, parol evidence will be admissible to show the particular property to which the words of general description were intended to apply. 26 Such oral evidence does not, and will not be permitted to, vary the terms of the deed; it merely identifies the premises intended to be conveyed, and enables the court to determine the application of the general language of the deed to the particular land to which it was intended to refer. 27 In other words, where words of general description are used in a deed, as a result of which the location of the premises is doubtful, oral evidence may be resorted to, to locate the premises intended to be conveyed. 28 But such evidence must be explanatory, and consistent with the terms of the instrument. 29 Its purpose should be to bring to light the intent, and not to create the intent. The primary object in construing the description in a deed is to arrive at the real intent of the parties. 30
This is interesting:
å¤ 24:39.Error in dividing tract, 1 N.Y. Law & Practice of Real Property å¤ 24:39 (2d ed.)
New York does not follow the rule observed in some states that where land is conveyed by reference to a map, and there is more or less in the entire tract which has been divided than the map shows, the excess should be divided among, or the deficiency borne by all of, the lots in proportion to their area, except that where most of the lots are of regular width and depth, but a few are irregular, it will be deemed that the irregular lots were intended to be the remnant left after laying out the regular lots and therefore required to bear any shortage. In New York each successive grantee of lots in the tract will be held entitled to the dimensions called for by his deed, and the last grantee must stand the deficiency in his lot and seek his remedy against his vendor. 38
å¤ 24:47.Relative importance of calls, 1 N.Y. Law & Practice of Real Property å¤ 24:47 (2d ed.):
Thus, a conveyance is to be construed in reference to its visible locative calls, as marked or appearing upon the land, in preference to quantity, course, or distance; and any particular may be rejected, if consistent with the other parts of the description, and sufficient remains to locate the land intended to be conveyed. 55 The reason for this is that conveyances are supposed to be made with reference to an actual view of the property by the parties. 56 Hence, courses and distances must be varied to conform to actual or ascertained objects, or fixed boundaries designated or referred to by them. 57
Dave Karoly, post: 364859, member: 94 wrote: These two sections are speaking to the identification of the land intended to be conveyed (a title question) but not necessarily the exact boundaries:
å¤ 24:35.Interpretation, 1 N.Y. Law & Practice of Real Property å¤ 24:35 (2d ed.):
å¤ 24:36.When parol evidence admissible, 1 N.Y. Law & Practice of Real Property å¤ 24:36 (2d ed.):
This is interesting:
å¤ 24:39.Error in dividing tract, 1 N.Y. Law & Practice of Real Property å¤ 24:39 (2d ed.)
Wow. Interesting.
That last rule is a bit awkward. So in old subdivisions where there may be an excess, one would have to figure out which lot was last conveyed (I assume the first conveyance after subdividing) to figure out which lot gets the excess or deficiency?
Can they make it any more difficult.
Then I also would like to know from some NY licensing board members why I had to proportion between lots on my NY portion of the exams..... maybe they never read that rule.
Rich., post: 364862, member: 10450 wrote: Then I also would like to know from some NY licensing board members why I had to proportion between lots on my NY portion of the exams..... maybe they never read that rule.
I think it is mentioned in Brown too. Reading the cases footnoted may explain it too.
-break-
å¤ 51.Resurveys, 12 Am. Jur. 2d Boundaries å¤ 51:
In surveying a tract of land according to a former plat or survey, the surveyor's only duty is to relocate, upon the best evidence obtainable, the courses and lines at the same place where originally located by the first surveyor on the ground. 1 In making the resurvey, the surveyor has the right to use the field notes of the original survey. 2
The object of a resurvey is to furnish proof of the location of the lost lines or monuments, not to dispute the correctness of or to control the original survey. The original survey in all cases must, whenever possible, be retraced, since it cannot be disregarded or needlessly altered after property rights have been acquired in reliance upon it. 3 On a resurvey to establish lost boundaries, if the original corners can be found, the places where they were originally established are conclusive without regard to whether they were in fact correctly located. 4 This rule is based on the premise that the stability of boundary lines is more important than minor inaccuracies or mistakes. 5
A resurvey not shown to have been based upon the original survey is inconclusive in determining boundaries and will ordinarily yield to a resurvey based upon known monuments and boundaries of the original survey. 6 However, where it is shown that there are gross errors and mistakes in an older survey which render it unreliable, a more recent survey may be used. 7
